Karnataka High Court
Santhu @ Santhosh Poojary vs State Of Karnataka By on 15 December, 2020
Bench: B.Veerappa, K.Natarajan
R
IN THE HIGH COURT OF KARNATAKA AT BENGALURU
DATED THIS THE 15TH DAY OF DECEMBER, 2020
PRESENT
THE HON' BLE MR. JUSTICE B. VEERAPPA
AND
THE HON'BLE MR. JUSTICE K.NATARAJAN
CRIMINAL APPEAL No.880/2015
C/W
CRIMINAL APPEAL No.858/2015
C/W
CRIMINAL APPEAL No.872/2015
In Crl. A. No.880/2015:
BETWEEN:
SANTHU @ SANTHOSH POOJARY
S/O SHEENA POOJARY
AGED ABOUT 26 YEARS
RESIDING AT HOUSE NO.4-108
SRI DEVIDYA KRIPA HOUSE
KAVOOR VILLAGE AND POST
MANGALORE TALUK.
(NOW IN JUDICIAL CUSTODY,
CENTRAL PRISON, DHARWAD)
...APPELLANT
(BY SRI HASHMATH PASHA, SENIOR COUNSEL A/W
SRI KALEEM SABIR, ADVOCATE)
2
AND:
STATE OF KARNATAKA BY
KAVOOR POLICE STATION,
DK, MANGALORE.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
****
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 22/24.04.2015 PASSED IN SESSIONS CASE NO.
42/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT AND
SESSIONS (SPECIAL) JUDGE, D.K., MANGALORE, IN SO FAR AS
CONVICTING APPELLANT - ACCUSED NO.1 FOR THE OFFENCES
PUNISHABLE UNDER SECTIONS 143, 147, 148, 341, 323, 504, 302
R/W SECTION 149 OF IPC AND SECTION 3(2)(v) OF THE SC & ST
(POA) ACT, 1989 AND CONSEQUENTLY, ACQUIT HIM FOR THE
SAID OFFENCES.
In Crl. A. No.858/2015:
BETWEEN:
1. GOWRISH @ SUJITH @ GOWRI
S/O MAHABALA POOJARY,
AGED ABOUT 21 YEARS,
RESIDING AT KUNTALAGUDDE, BAJALU,
KANKANADY VILLAGE
MANGALORE-575002.
2. HARSHARAJ @ HARSHITH
S/O DEVADAS POOJARY,
3
AGED ABOUT 20 YEARS
RESIDING AT KANCHALAGURI HOUSE,
KULASHEKAR CHOWKI,
KULASHEKAR POST,
MANGALORE TALUK-591307.
(NOW IN JUDICIAL CUSTODY,
CENTRAL PRISON, DHARWAD)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR COUNSEL A/W
SRI KALEEM SABIR, ADVOCATE)
AND:
STATE OF KARNATAKA
BY KAVOOR POLICE STATION,
D K, MANGALORE-575002.
(REPRESENTED BY LEARNTED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
******
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 22/24.04.2015 PASSED IN SESSIONS CASE NO.
42/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT AND
SESSIONS (SPECIAL) JUDGE, D.K., MANGALORE, IN SO FAR AS
CONVICTING APPELLANTS - ACCUSED NOS.4 AND 5 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 143, 14`7, 148, 341,
323, 504, 302 R/W SECTION 149 OF IPC AND SECTION 3(2)(v) OF
THE SC & ST (POA) ACT, 1989 AND CONSEQUENTLY, ACQUIT
THEM FOR THE SAID OFFENCES.
4
In Crl. A. No.872/2015:
BETWEEN:
1. GAUTHAM @ GOUTHU
S/O NAGESHA BELCHADA
AGED ABOUT 22 YEARS
RESIDING AT NAGESHA-BHARATHI HOUSE
AKASHABHAVANA,
KAVOOR VILLAGE AND POST,
MANGALORE TALUK-06.
2. AKSHAY @ AKSHAY KUMAR KOTTARI
S/O KAMALAKSHA
AGED ABOUT 24 YEARS
RESIDING AT HOUSE NO.40168,
KOTTARI COMPOUND,
KUDRADI, KOTTARA CHOWKI,
ASHOKNAGAR POST, DEREBAIL VILLAGE
MANGALORE TALUK 591 307.
(NOW IN JUDICIAL CUSTODY,
CENTRAL PRISON, DHARWAD)
...APPELLANTS
(BY SRI HASHMATH PASHA, SENIOR COUNSEL A/W
SRI KALEEM SABIR, ADVOCATES)
AND:
STATE OF KARNATAKA BY
KAVOOR POLICE STATION,
D. K ., MANGALORE.
(REPRESENTED BY LEARNED
STATE PUBLIC PROSECUTOR)
...RESPONDENT
(BY SRI VIJAYAKUMAR MAJAGE, ADDITIONAL SPP)
*****
5
THIS CRIMINAL APPEAL IS FILED UNDER SECTION 374(2) OF
THE CODE OF CRIMINAL PROCEDURE, 1973, PRAYING TO SET
ASIDE THE JUDGMENT AND ORDER OF CONVICTION AND
SENTENCE DATED 22/24.04.2015 PASSED IN SESSIONS CASE NO.
42/2012 ON THE FILE OF THE II ADDITIONAL DISTRICT AND
SESSIONS (SPECIAL) JUDGE, D.K., MANGALORE, IN SO FAR AS
CONVICTING APPELLANTS - ACCUSED NOS.2 AND 3 FOR THE
OFFENCES PUNISHABLE UNDER SECTIONS 143, 147, 148, 341,
323, 504, 302 R/W SECTION 149 OF IPC AND SECTION 3(2)(v) OF
THE SC & ST (POA) ACT, 1989 AND CONSEQUENTLY, ACQUIT
THEM FOR THE SAID OFFENCES.
THESE CRIMINAL APPEALS HAVING BEEN HEARD AND
RESERVED FOR JUDGMENT, COMING ON FOR PRONOUNCEMENT OF
JUDGMENT THIS DAY, B.VEERAPPA, J, DELIVERED THE
FOLLOWING:
JUDGMENT
Criminal Appeal No.880/2015 is filed by Accused No.1; Criminal Appeal No.858/2015 is filed by Accused Nos.4 and 5; and Criminal Appeal No.872/2015 is filed by Accused Nos.2 and 3. These Criminal Appeals are filed against the common Judgment of conviction and Order of sentence dated 22/24.4.2015 made in Special Case No.42/2012 on the file of the II Addl. District & Sessions (Special) Judge, D.K., Mangaluru convicting the Accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 341, 323, 504, 302 r/w Section 149 of IPC and Section 3(2)(v) 6 of the Scheduled Castes and the Scheduled Tribes (Prevention of Atrocities) Act, 1989 {'SC & ST (POA) Act' for short} and sentencing them to undergo imprisonment for life with fine of Rs.5,000/- each for the offence under Section 302 of IPC; to undergo imprisonment for life with fine of Rs.5,000/- each for the offence under Section 3(2)(v) of the SC & ST (POA) Act; and to undergo Simple Imprisonment for one year, three months, six months and to pay fine etc., for the other offences.
I. BRIEF FACTS OF THE CASE
2. It is the case of the prosecution that PW.1 - Pradeepa lodged a complaint on 16.6.2012 at about 3.30 a.m., alleging that on the night of 15.6.2012 (i.e., previous night), himself and his friends - Manjunath, Santhosh and Kumar had been to Konchadi for purchasing a mosquito coil and when they were coming back near 4th Mile bus stop, two cars and a motorcycle came there and blocked their way and when they were identifying the inmates of the car, Santhu, Gowtham, Akshay and two others (i.e., Accused Nos.1 to 3 and two others) got down from the car and started abusing them (the complainant and his friends) in the filthy 7 language and assaulted them with hand. It was at about 11.15 p.m. and when the complainant and his three friends tried to escape, the Accused No.1 stabbed with a knife on the left abdomen of Kumar and the said Kumar fell down on the road. It is further alleged that the complainant and his friends shouted and screamed and on seeing that the public started gathering, the accused ran away. The injured Kumar was shifted to A.J. Hospital in an autorickshaw for treatment. It is further alleged that at the time of assault, the other two accused were instigating the Accused No.1 to kill Kumar and not to spare his life. The complainant also stated that himself, Kumar, Manjunath, Santhosh and Pappu @ Pradeep are the friends and Pappu @ Pradeep had enmity with the Accused NO.1 and there were frequent altercations between them. Therefore, it is alleged that the complainant and his friends being the friends of Pappu @ Pradeep, the accused had enmity with them also and with the same object, the accused had come with his friends to assault and kill and has injured the said Kumar. The complainant (PW.1) also stated that since the injured Kumar is under treatment in ICU, he had given the statement before the Police. The said statement of PW.1 was recorded by H.C. 8 No.1296, who visited the hospital at about 2.30 a.m. on 16.6.2012 on the basis of the MLC intimation by the hospital as per Ex.P10. The said Police Constable came back to the Police Station and registered Crime No.88/12 for the offences punishable under Sections 143, 147, 148, 341, 323, 504, 307 r/w Section 149 of IPC. Thereafter, the said Kumar succumbed to the injuries in the hospital and therefore, the offence under Section 302 of IPC came to be included in the case. The Investigating Officer (PW.24) took up further investigation of the case and directed PW.23 to conduct inquest and other formalities. After completion of investigation, the jurisdictional Investigation Officer filed the final report and the accused were apprehended on various dates. The Accused No.6 was absconding, though several efforts were made to secure his presence by issuing NBW, he could not be traced and therefore, case against him was split up in Spl.C. No.5/2013. The Special Court has taken the cognizance for the offences made out in the charge framed against the accused persons for the offences punishable under Sections 120B, 143, 147, 148, 341, 323, 504, 302 r/w Section 149 of IPC and Section 3(2)(v) of the SC & ST 9 (POA) Act and read over to the accused, who pleaded not guilty and claimed to be tried.
3. In order to prove the guilt of the accused, the prosecution in all examined 24 witnesses as PWs.1 to 24 and got marked the material documents - Ex.P1 to Ex.P29 and the material objects - Mos.1 to 7. The accused has not chosen to lead any defence evidence, but got marked the documents - Ex.D1 to Ex.D3.
4. After completion of evidence of the prosecution witnesses, the statements of the accused persons as contemplated under the provisions of Section 313 of the Code of Criminal Procedure were recorded by the learned Sessions Judge. The accused denied all the incriminating evidence adduced against them and also the case set up by the prosecution. Accused No.1 also filed the statement setting plea of alibi.
5. The learned Sessions Judge considering the entire material on record, formulated three points for consideration, which read as under:
10
1. Whether the prosecution proves beyond reasonable doubt that the deceased Kumar met with homicidal death?
2. Whether the prosecution proves beyond reasonable doubt that on 15.06.2012 at about 11.15 p.m. near 4th Mile Bus stop of Mullakadu, Kavoor village, Mangaluru Taluk, the accused No.1 to 5 in pursuance of their conspiracy to kill a person belonging to a gang of Pappu @ Pradeep formed unlawful assembly with knife and assaulted P.W.1 to 3 and deceased Kumar who were walking on the road, abused them and accused No.1 stabbed the deceased Kumar with knife and intentionally committed the murder of the said Kumar and thereby committed the offences punishable under sections 143, 147, 148, 341, 323, 504, 302 read with section 149 of IPC?
3. Whether the prosecution proves beyond reasonable doubt that on the above said date, time and place, the accused No.1 to 5 in pursuance of their conspiracy to kill a person belonging to a gang of pappu @ pradeep formed unlawful assembly with knife and assaulted P.W.1 to 3 and deceased Kumar who were walking on the road, abused them and accused No.1 stabbed the deceased 11 Kumar with knife and intentionally committed the murder of the said Kumar knowing that he belongs to a schedule case i.e., Koraga Community and thereby committed the offence punishable under section 3(2)(5) of SC & ST (POA) Act?
6. After considering both the oral and documentary evidence on record, the learned Sessions Judge answered the 1st point in the affirmative and the 2nd and 3rd points partly in the affirmative. Accordingly, the learned Sessions Judge by the impugned judgment and order convicted the Accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 341, 323, 504, 302 r/w Section 149 of IPC and Section 3(2)(v) of the SC & ST (POA) Act, 1989 and sentenced them to undergo imprisonment for life with fine of Rs.5,000/- for the offence under Section 302 of IPC; Simple Imprisonment for six months with fine of Rs.1,000/- for the offence under Section 504 of IPC; Simple Imprisonment for three months with fine of Rs.1,000/- for the offence under Section 323 of IPC; fine of Rs.1,000/- for the offence under Section 341 of IPC; one year Simple Imprisonment with fine of Rs.1,000/- for the offences under Sections 143, 147 and 148 of IPC; and imprisonment for life 12 with fine of Rs.5,000/- for the offence under Section 3(2)(v) of the SC & ST (POA) Act and directed that the sentences shall run concurrently.
7. Being aggrieved by the impugned judgment of conviction and order of sentence, the present appeals are filed by the appellants - accused persons.
8. By the very impugned judgment, the trial Court acquitted Accused Nos.1 to 5 for the offence punishable under Section 120B of IPC holding that the prosecution failed to prove the conspiracy beyond reasonable doubt. The State has not filed any appeal against the judgment and order of acquittal, acquitting the Accused Nos.1 to 5 for the offence under Section 120B of IPC.
9. We have heard the learned counsel for the parties. II. ARGUMENTS ADVANCED BY SRI HASHMATH PASHA, LEARNED SENIOR COUNSEL FOR THE APPELLANTS
10. Sri Hashmath Pasha, learned senior counsel for the appellants - Accused Nos.1 to 5 contended with vehemence that 13 the injured Kumar was taken at the earliest to A.J. Hospital, Mangalore by PW.2 with the history of assault at 11.15 P.M. on 15.6.2012 with knife by people. The same is mentioned in the Ex.P10 - MLC intimation. Therefore in the history disclosed before the doctor at the earliest point of time, the identity of the assailants was not at all mentioned. Learned senior counsel would further contend that though PW.1 admitted that he lodged the complaint to SHO, Kadri Police Station earlier, FIR in respect of the complaint lodged is not produced and the same is suppressed by the prosecution. Learned senior counsel also contended that Ex.P1
- complaint is not the first information and it is a belated document prepared after due deliberations only after the death of the deceased and cannot be relied upon. The inclusion of the names of Accused Nos.1 to 3 in Ex.P1 - complaint is a deliberate act only to implicate them in the commission of the offence.
11. Learned senior counsel further contended that PWs.2 to 6 have not given their statements till the stage of inquest recorded and therefore, no credence can be attached to their evidence. The presence of PWs.4,5 and 6 was also not mentioned in the Ex.P1 - 14 complaint. He would further contend that the incident occurred suddenly, when the deceased Kumar waylaid the two cars and bike and question of formation of unlawful assembly by the accused would not arise. No overt acts are attributed against Accused Nos.2 to 5 and no weapon was recovered from them and not conducted Test Identification parade at the instance of the complainant to identify Accused Nos.2 to 5.
12. Learned senior counsel further contended that the evidence of PW.1 against Accused No.1 and the averments made in the complaint - Ex.P1, are improvements made to falsely implicate the accused persons. PW.1 admitted sketches - Ex.P4 and Ex.P9, but there was no reference in the complaint - Ex.P1 with regard to sufficient source of light at the time of incident. PW.1 also admitted that there was no unlawful assembly; there was no motive; and there was no premeditation for commission of the offence. PW.1 also admitted that the complaint - Ex.P1 was not lodged immediately and the incident occurred because of the assault by people. The panch witnesses to Ex.P4 (sketch) and Ex.P6 (mahazar relating to seizure of car), are not eye witnesses. 15
13. Learned senior counsel also contended that PW.2, who is the eye witness and who admitted the injured to the A.J. Hospital stated that people in the car scolded and assaulted the deceased and there was a scuffle for five minutes. In Ex.P10 - MLC intimation, the names of the accused persons are not mentioned. PW.3 has stated that after mutual exchange of words, accused assaulted the deceased and PW.3 has not stated about the injuries sustained by the deceased in the examination-in-chief and no re- examination was made. Though PW.4 - autorickshaw driver has stated that there was scuffle between Accused Nos.1 to 3 on one side and PWs.1 to 3 and the deceased on the other side, his name was not mentioned in the FIR as an eye witness and PWs.1 to 3 have not whispered the presence of PW.4. PW.5 - Pappu @ Pradeepa stated on oath that PWs.1 to 4 are friends and Accused Nos.1,3 and 4 assaulted him previously on 14.3.2012 in a Bar and therefore, he lodged the complaint against the said accused under the provisions of the SC & ST (POA) Act, 1989 and therefore, Accused Nos.1 to 3 have vengeance against him. In the cross- examination, PW.5 has admitted that there is criminal case registered by him against the accused and thus there is enmity 16 between him and the accused. PW.6, the brother-in-law of the deceased stated about scuffling or fight between PWs.1 to 3 and the deceased Kumar on one side and accused persons on the other side. PW.6 has also stated that other accused persons were there at the time of assault, but he has not attributed any overt acts against Accused Nos.2 to 5. In the cross-examination, PW.6 admitted that he is not aware as to who assaulted the deceased. The evidence of PWs.1 to 6 is not consistent with one another and there are omissions and commissions in their evidence.
14. Learned senior counsel would further contend that PW.7 is a hearsay witness; PW.8, who is witness to the spot mahazar has deposed that he has not stated about the source of light at the time of incident; and PW.11, who is witness to recovery of MO.4
- knife turned hostile to the case of the prosecution.
15. Learned senior counsel also contended that PW.9 is the inquest panch to the conspiracy and PW.10 has stated about conspiracy and the trial Court recorded a finding that the prosecution has not proved the conspiracy based on the oral and documentary evidence and accordingly acquitted the accused 17 persons for the offence under Section 120B of IPC. The State has not challenged the said order of acquittal.
16. Learned senior counsel would further contend that absolutely there are no overt acts against Accused Nos.2 to 5 and overt acts are attributed only against Accused No.1 that he has stabbed the deceased Kumar with knife.
17. Learned senior counsel also contended that absolutely there is no charge under Section 114 IPC nor the prosecution proved the offence under Section 3(2)(v) of the SC & ST (POA) Act, 1989.
18. In the circumstances, learned senior counsel sought to set aside the impugned judgment and order of conviction and sentence and to allow the appeals.
19. In support of his contentions, learned senior counsel relied upon the following judgments:
1. Rehmat Vs. State of Haryana reported in 1996(10) SCC 346 18
2. State of A.P. Vs. Punati Ramulu and others reported in 1994 supp(1) SCC 590
3. Dinesh alias Buddha Vs. State of Rajasthan reported in 2006(3) SCC 771
4. Ramdas and others Vs. State of Maharashtra reported in 2007(2) SCC 170
5. Mohd. Iqbal M. Shaikh and others Vs. State of Maharashtra reported in 1998(4) SCC 494
6. Abani K. Debnath and another Vs. State of Tripura reported in 2005(13) SCC 422
7. Hitesh Verma vs. State of Uttarakhand and another reported in 2020 SCC online SC 907
8. Chikkarange Gowda and others vs. State of Mysore reported in AIR 1956 SC 731
9. Jainul Haque, vs. State of Bihar reported in AIR 1974 SC 45 III. ARGUMENTS ADVANCED BY SRI VIJAYKUMAR MAJAGE, LEARNED ADDL. SPP
20. Per contra, Sri Vijaykumar Majage, learned Addl. SPP while justifying the impugned Judgment of conviction contended 19 that Ex.P10 - MLC intimation depicts that the accused involved in the alleged incident of assault with knife by people. Ex.P21 - wound certificate depicts that the deceased sustained injuries due to assault by Santosh and others. Ex.P1 - complaint depicts the names of Accused Nos.1 to 3 and others. In the evidence of PWs.1 and 3, the presence of the accused stated. He would further contend that the accused being members of the unlawful assembly, the trial Court is justified in convicting them. He would further contend that the motive can be developed at the spot and the same is stated by PW.1 in his examination-in-chief. He would further contend that initially, the case was registered under Section 307 of IPC and after the death of the deceased Kumar, the same was converted into one under Section 302 of IPC. He further contended that conducting of Test Identification Parade is not necessary, when there are eye witnesses to the scene of occurrence. He relied upon the evidence of PWs.4,8,11 and 12 with regard to the street light and recovery of MO.4 - knife so also in respect of the mahazar - Ex.P6. Therefore, he contended that the prosecution has proved beyond reasonable doubt that the accused are involved in the commission of the offences made out in the charge, and the trial 20 Court is justified in convicting the accused persons. Therefore, he sought to dismiss the appeals.
21. In support of his contentions, learned Addl. SPP relied upon the following judgments:
1. Lalji and others vs. State of U.P. reported in (1989) 1 SCC 437 (paragraphs 8 and 9)
2. Pattipati Venkaiah vs. State of Andhra Pradesh reported in AIR 1985 SC 1715
3. Amar Singh Vs. Balwinder Singh and others reported in 2003 SCC (cri) 641 (paragraphs 12 and 13)
4. Malkhansingh and others vs. State of M.P. reported in (2003) 5 SCC 746 IV. POINTS FOR DETERMINATION
22. In view of the aforesaid rival contentions urged by the learned counsel for the parties, the points that would arise for our consideration in these criminal appeals are: 21
i) Whether the appellants - Accused Nos.1 to 5 have made out a case to interfere with the impugned Judgment of conviction and order of sentence passed by the trial Court convicting them for the offences punishable under Sections 143, 147, 148, 341, 323, 504, 302 r/w Section 149 of IPC and sentencing them to undergo imprisonment for life with fine of Rs.5,000/- each for the offence under Section 302 of IPC and to undergo Simple Imprisonment for one year, three months, six months with fine etc., for the other offences ?
ii) Whether the appellants - Accused Nos.1 to 5 have made out a case to interfere with the impugned judgment of conviction and order of sentence passed by the trial Court, convicting them for the offence punishable under Section 3(2)(v) of SC & ST (POA) Act, 1989 and sentencing them to undergo imprisonment for life with fine of Rs.5,000/- each, in the facts and circumstances of the case ?
23. We have given our thoughtful consideration to the arguments advanced by the learned counsel for the parties and perused the entire material including the original records carefully. 22 V. THE EVIDENCE OF THE PROSECUTION WITNESSES AND THE DOCUMENTS RELIED UPON
24. The sum and substance of the evidence of the prosecution witnesses is as under:
(i) PW.1 - Pradeepa, who is the complainant and the eye witness has deposed that on 15.6.2012 at 11.15 p.m. in the night, himself and his friends by name Manjunath, Santhosh and Kumara had been to Konchadi for purchasing mosquito coil and when they were coming back, one car came and stood opposite to them.
From the car, Santhu, Gowtham, Akshay and two others came out and abused them and started assaulting with hands. There was scuffle between both the parties and in the scuffle, the deceased Kumar sustained injuries and fell down. Thereafter, the injured Kumar was taken to A.J. Hospital for treatment and the complaint lodged to the Police as per Ex.P1. Based on the complaint, the jurisdictional Police registered the FIR in Crime No.88/2012 for the alleged offences. On 16.6.2012 at 1.00 p.m. Police drawn spot mahazar as per Ex.P3. At 6.30 p.m., car was seized under Ex.P6. He also identified MO.1 - blood stained mud; MO.2 - 23 sample mud; MO.3 - glass pieces and MO.4 - knife. He supported the prosecution case.
(ii) PW.2 - Manjunath, who is the friend of the deceased and eye witness to the incident, has deposed that on 15.6.2012 at 10.45 p.m. when he and PW.1 and CW.3 had gone to buy mosquito coil, at that time the incident occurred. He supported the prosecution case.
(iii) PW.3 - Santhosh, who is the friend of the deceased and eye witness to the incident, has deposed that on 15.6.2012 at 10.45 p.m. when he, PW.1 and PW.2 and the deceased Kumar had been to buy mosquito coil, incident occurred. He supported the prosecution case.
(iv) PW.4 - Vishwanath, who has house near the place of incident has deposed that on 15.6.2012 at 11.15 p.m. while he was in his house, he heard commotion and then he went and saw the incident. He supported the prosecution case.
(v) PW.5 - Pappu @ Pradeep, who is the eye witness has deposed that previously on 14.3.2012 at 1.00 a.m., in the Bar there 24 was a quarrel between him and Accused Nos.1,3 and 4 and on 15.6.2012 at 11.15 p.m. while he was at 4th Mile, he heard commotion from road side and he went and saw the incident. He supported the prosecution case.
(vi) PW.6 - Santhosh, who is the brother-in-law of the deceased and an eye witness to the incident has deposed that he along with his wife had been to the house of his mother-in-law and on 15.6.2012 at 11.15 p.m., he heard commotion and went outside the house and saw on road the occurrence of the incident in question. He supported the prosecution case.
(vii) PW.7 - Ravi @ Ravindra, who is the elder brother of the deceased has deposed that on 16.6.2012 at 6.30 a.m., his sister called him to come to A.J. Hospital and when he went to the hospital, his brother Kumar was dead. Later, in the hospital, clothes of the deceased were given to him and same were brought and produced before the Police and they were seized under mahazar - Ex.P8. He also identified MOs.5 to 7 - clothes. He supported the prosecution case.
25
(viii) PW.8 - Praveen, who is the panch for spot mahazar and seizure of car has stated that Ex.P2 is notice to become panch; Ex.P3 is mahazar and Ex.P4 is sketch. He has further stated that the Police called him to become panch for seizure of car near Akash Bhavan and Ex.P5 is notice; Ex.P6 is mahazar relating to seizure of car bearing Registration No.KA-19-C-8374. He supported the prosecution case.
(ix) PW.9 - Krishna, who is the inquest panch has deposed that on 16.6.2012 in A.J. Hospital, the Police conducted inquest as per Ex.P11. He was also a panch for seizure of clothes of the deceased (MO.5 - pant; MO.6 - shirt) and MO.7 - Torchlight as per Ex.P8. He supported the prosecution case.
(x) PW.10 - Vasanth Kumar has deposed that on 10.6.2012 at 9.30 p.m. in Kochadi Vijaya Bar, there was conspiracy among Accused Nos.1 to 6 to eliminate any one of group of Pradeep and later, he learnt murder of Kumara. He supported the case of the prosecution.
26
(xi) PW.11 - Lancy D'Souza, who is panch for recovery of knife has deposed that on 22.6.2012, the Police called him to the Police Station and he went with Police to Mallakadu where a house was under construction. Accused No.1 and another person was there and Accused No.1 produced MO.4 - knife and the Police seized the same under mahazar - Ex.P12. He turned hostile to the case of the prosecution.
(xii) PW.12 - Delvin D'Souza, who is panch for recovery of knife has deposed that on 22.6.2012 the Police called him and PW.11 and from a house one knife was produced by Accused No.1 and the same was seized by the Police under mahazar - Ex.P12.
(xiii) PW.13 - Purushothama, who is the owner of Vijaya Bar has deposed that on the previous day of publication of the incident in the newspaper, Accused No.1 and one Dheeraj had come to his Bar and spent about 45 minutes and thereafter, they went away. He turned hostile to the case of the prosecution.
(xiv) PW.14 - Deeraj, who is the friend of Accused No.1 has deposed that on 15.6.2012 in the forenoon, Accused NO.1 had 27 come to his house and on the same date at 8 or 8.30 p.m., himself and Accused No.1 had gone to Vijay Bar for taking drinks. He turned hostile to the case of the prosecution.
(xv) PW.15 - Rajesh Rai, who is the Junior Engineer has deposed that on 15.6.2012, he had prepared sketch of scene of occurrence as per Ex.P9. He supported the prosecution case.
(xvi) PW.16 - Dr. Ullas Shetty of A.J. Hospital has deposed that on 16.6.2012, he conducted autopsy over the dead body of the deceased Kumara and issued P.M. report as per Ex.P15. He supported the prosecution case.
(xvii) PW.17 - Rajesh, who is the Photographer has deposed that on 16.6.2012 at 8.00 a.m. Kavoor Police had called him to A.J. Hospital to take photos of dead body and he took seven photos as per Ex.P18. He supported the prosecution case.
(xviii) PW.18 - Dr. Geethalakshmi, who is the Scientific Officer of FSL, Mangalore, has deposed that on 9.7.2012 she received seven articles and conducted analysis and issued the FSL reports as per Ex.P19 and Ex.P20. She supported the prosecution case. 28
(xix) PW.19 - Dr. Jayaprakash, who is the Professor of Forensic Medicine has deposed that on 15.6.2012 at 11.35 p.m., one person by name Kumar, aged about 18 years, was brought to hospital with the history of assault by a group of people and the Surgeon attended the injured, but the injured Kumar died at 5.10 a.m. on 16.6.2012. He issued the wound certificate as per Ex.P21. He supported the prosecution case.
(xx) PW.20 - Yadav, who is P.C. No.873, has deposed that on 16.6.2012 at 4.30 a.m., he was deputed to deliver FIR and he has delivered the same to the learned Magistrate at 6.30 a.m. on the same day. On 16.6.2012, another report after the death of injured was also submitted to the Magistrate. He supported the prosecution case.
(xxi) PW.21 - Kamalaksha, who is the Head Constable has deposed that on 15.6.2012 at 7.30 a.m. PW.1 - Pradeep came and gave complaint as per Ex.P1, upon which he went to A.J. Hospital and after observing the injured admitted, he returned to Police Station and registered FIR as per Ex.P22. At 6.00 a.m., he 29 received Death Memo as per Ex.P23 and therefore added offence under Section 302 of IPC and Section 3(2)(v) of the SC & ST (POA) Act and submitted report as per Ex.P24. He supported the prosecution case.
(xxii) PW.22 - Dr. H.M. Venkatesh Prasanna, who is the Police Inspector, CCB, Mangalore has deposed that on 19.6.2012 at 7.45 p.m, he received information that three accused are in Rajesh Bar of Bantawal and he alongwith other Police went and apprehended Gowtham, Gowrish and Harsharaj and produced them before the Investigating Officer and his report is at Ex.P27. He supported the prosecution case.
(xxiii) PW.23 - Cheluvaraj, who is the CPI and Investigating Officer has deposed that on 16.6.2012 at 7.30 a.m., he was informed about the registration of the case and he was authorized for investigation as per Ex.P28. He took up investigation, conducted inquest as per Ex.P11 and seized the clothes of the deceased under mahazar - Ex.P8 on the same day. On 19.6.2012, Accused Nos.2 to 4 were produced before him with report Ex.P27. He supported the prosecution case.
30
(xxiv) PW.24 - Puttamadaiah, who is the ACP has deposed that on 16.6.2012 he took over further investigation of the case from PSI and conducted investigation and filed charge sheet on 29.8.2012. He supported the prosecution case.
25. Based on the aforesaid oral and documentary evidence on record, the learned Sessions Judge proceeded to pass the impugned Judgment by convicting the Accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 341, 323, 504, 302 r/w Section 149 of IPC and Section 3(2)(v) of the SC & ST (POA) Act.
VI. CONSIDERATION
26. In order to re-appreciate the entire oral and documentary evidence on record being the appellate Court, it is relevant to consider the gist of the complaint lodged by PW.1 as per Ex.P1 and the evidence of certain important witnesses and the material documents relied upon by the prosecution.
27. The gist of the complaint - Ex.P1 is that on the night of 15.6.2012 at 11.15 p.m., the complainant (PW.1) and his friends - Manjunath (PW.2), Santhosh (PW.3) and the deceased Kumar had 31 been to Konchadi for purchasing a mosquito coil and when they were coming back near 4th Mile bus stop, two cars and a motorcycle came there and blocked their way and when they were identifying the inmates of the car, Accused Nos.1 to 3 and two others got down from the car and started abusing them in the filthy language and assaulted them with hand and when the complainant and others tried to escape, the Accused No.1 stabbed with a knife on the left abdomen of Kumar and the said Kumar fell down on the road. At that time, the complainant and his friends shouted and screamed and on seeing that, the public started gathering there, the accused ran away. In the complaint, it is clearly stated that only Accused No.1 assaulted the deceased with knife and absolutely no overt acts are attributed against Accused Nos.2 to 5 for the commission of the offence.
28. PW.1 has stated in the examination-in-chief that on 15.6.2011, himself and his friends had been to Konchadi for purchasing a mosquito coil and when they were coming back, at about 11.15 p.m., when they were near the house of the deceased, at that time, a car came there and blocked their way. When they 32 went near the car, Accused Nos.1 and 2 and others (totally seven members), who were in the car, got down from the car and started abusing them and Accused No.1 stabbed the deceased Kumar with knife on the left abdomen, as a result of which, he fell down on the road and when the public started gathering there, the accused ran away. The deposition of PW.1 in paragraphs 2 and 3 of his evidence is not corroborated with the averments made in the complaint and there are improvements in the evidence of PW.1. PW.1 admitted in the cross-examination that there was no reference to street light in the sketches - Ex.P4 and Ex.P9 and the car was standing 5 to 6 feet away from PW.1 and others. He also admitted that himself and his friends identified Accused Nos.1 and 2 and there was scuffle between PWs.1 to 3 and the deceased Kumar on one side and the accused persons on the other side about five minutes. When the deceased Kumar fell down, the accused persons ran away. He has further deposed that prior to the incident, there were no abuses or scuffle between himself and the accused persons. He also stated that he is not aware as to whether there was previous enmity between the accused persons and the deceased Kumar. He also admitted that in Ex.P10 - MLC intimation, it is only stated that 33 some people assaulted the deceased and there is no mention of names of the assailants. He further admitted that there was no intention to fight between the parties and there was no unlawful assembly and there was no premeditation about the scuffle. Therefore, there are certain omissions in the evidence of PW.1 and also there are certain improvements in the evidence from the complaint. The said aspects of the matter have not been considered by the learned Sessions Judge.
29. PW.2, who is an alleged eye witness has stated that on the date of the incident, there was assault on the deceased Kumar by the accused and he is also panch witness to Ex.P4 - spot sketch and Ex.P6 - mahazar relating to seizure of car. He is an Attender of the A.J. Hospital, as admitted by him in the cross-examination. He has further stated that people in the car assaulted the deceased and scuffling continued between PWs.1 to 3 and the deceased on one side and the accused persons on the other side for about five minutes. PW.3 has deposed about mutual exchange of words and stated that Accused No.1 assaulted the deceased. In the cross- examination, he has admitted that he came to know that the 34 deceased Kumar has sustained injuries at some other place, but not at the place of the incident in question. PW.4 - Vishwantha, who is the driver of the autorickshaw, whose name not found in the FIR as an eye witness also stated that there was scuffling between the accused persons on one side and PWs.1 to 3 and the deceased on the other side.
30. Admittedly, PWs.1 to 3 have not whispered the presence of PW.4 and they have not attributed any overt acts against Accused Nos.2 to 5 and the overt acts are attributed only against Accused No.1 that he assaulted the deceased Kumar with knife. The said material aspects have not been considered by the learned Sessions Judge while passing the impugned judgment of conviction. On that ground also, the impugned judgment passed by the trial Court convicting all the accused persons for the offence under Section 302 r/w 149 of IPC cannot be sustained.
31. PW.5 - Pappu @ Pradeepa has stated on oath that PWs.1 to 4 are friends and Accused Nos.1,3 and 4 assaulted him previously on 14.3.2012 in the Bar and he lodged the complaint against the said accused under the provisions of the SC & ST (POA) 35 Act, 1989 and therefore, accused persons have vengeance against him. In the cross-examination, he has admitted that there is criminal case registered by him against the accused and there is enmity between him and the accused. PW.6, who is brother-in-law of the deceased also stated about the scuffling between accused persons on one side and PWs.1 to 3 and the deceased on the other side. Though he has stated that the other accused persons i.e., Accused Nos.2 to 5 were also at the spot, has not attributed any overt acts against them. In the cross-examination, he has admitted that he is not aware as to who assaulted the deceased Kumar. The said material admission has not been considered by the learned Sessions Judge.
32. The evidence of PWs.1 to 6 is not consistent with one another and there are omissions and commissions in their evidence. The said aspect of the matter has not been considered by the learned Sessions Judge.
33. PW.7, who is a hearsay evidence has stated that he came to know that there was a fight between Accused No.1 and the deceased Kumar on 15.6.2012. PW.8, who is the witness to the 36 spot mahazar has stated that he has not stated about source of light in his evidence. PW.9, who is the inquest panch supported the prosecution case. PW.10 - Vasanth Kumar, who was doing painting work in Mangalore and surrounding villages, has admitted that his house is nearer to the house of PW.5 and himself and PW.5 are friends and he came to know that there is criminal case against PW.5. In the cross-examination, he has admitted that before going to Bangalore, he has not informed PW.5 that the accused persons earlier were making conspiracy to eliminate any one of the group of Pradeep (PW.5). PW.11, who is the witness to recovery of MO.4 - knife has turned hostile to the case of the prosecution. In the cross-examination, he has admitted that he has not signed Ex.P12 and the Police have not taken the statement of the accused No.1 in his presence. PW.12 is the witness to seizure mahazar - Ex.P12 relating to recovery of MO.4. PWs.10 to 14 have not fully supported the prosecution case.
34. On careful perusal of the entire evidence of the prosecution witnesses and the material on record, it clearly depicts that there was scuffle between PWs.1 to 3 and the deceased on the 37 one side and the accused persons on the other side about five minutes and in the scuffle, Accused NO.1 had assaulted the deceased with knife - MO.4. Though it is stated about the presence of Accused Nos.2 to 5, no overt acts are attributed against them. PW.1 has stated that the deceased Kumar was taken at the earliest to the A.J. Hospital with the history of 'assault by people with knife' as per Ex.P10 and he has also admitted that complaint was given to the SHO, Kadiri Police Station. Admittedly, FIR in respect of the complaint lodged before the Kadiri Police Station, is not produced before the Court and the same was suppressed by the prosecution as admitted by PW.1. The complaint - Ex.P1 prepared after due deliberations and only after the death of the deceased and the same cannot be relied upon. The inclusion of names of Accused Nos.1 to 3 in the complaint - Ex.P1 is deliberate act only to implicate them. Admittedly, the statements of PWs.2 to 6 have not been recorded by the Investigation Officer till the stage of inquest recorded and therefore, no credence can be attached to their evidence. The presence of PWs.4,5 and 6 was also not mentioned in the FIR. The material on record clearly depicts that the incident occurred suddenly, when the deceased Kumar waylaid 38 two cars and bike and question of formation of unlawful assembly of the accused persons would not arise. Admittedly, no weapon was recovered from Accused Nos.2 to 5 nor conducted Test Identification Parade at the instance of the complainant to identify Accused Nos.2 to 5. By careful perusal of Ex.P4 and Ex.P9 - sketches, it clearly depicts that in both the sketches, there is no reference to light pole existing nor any street light situated near the spot of occurrence.
35. The trial Court by considering the entire material on record, has recorded a finding with regard to conspiracy that though there is earlier enmity which has been elicited in the evidence, the motive itself cannot be a conspiracy. The conspiracy to kill is in the form of an agreement. Conspiracy includes prior thought to eliminate the member of the gang of PW.5, preparation and execution and the same is not established. Accordingly, Accused Nos.1 to 5 are acquitted under the provisions of Section 120B of IPC. The State has not filed any appeal against the acquittal of accused persons for the offence under Section 120B of IPC. Admittedly though according to the prosecution witnesses, 39 Accused Nos.2 to 5 are present at the time of the incident, but no charge is framed under the provisions of Section 114 of IPC.
36. By careful reading of the case of the prosecution, it clearly depicts that the alleged incident occurred on 15.6.2012 at 11.15 p.m. and registered the complaint - Ex.P1 on the next day i.e., 16.6.2012 between 2.30 and 3.15 a.m. Ex.P9 depicts that four houses are near the spot of occurrence and none of the adjacent owners have been examined by the prosecution to prove its case. The averments made in the complaint - Ex.P1 depict that Accused No.1 stabbed the deceased with knife at once and there was vengeance between PW.5 - Pappu @ Pradeepa and Accused No.1 - Santhu @ Santhosh Poojary.
37. Ex.P11 - inquest panchanama recorded between 8.00 a.m. and 11.15 a.m. on 16.6.2012. The statements of PWs.2 to 5 were not recorded during the inquest. At item No.3 of the inquest panchanama with regard to who has seen the dead body of the deceased first, where and when, it is stated that on 15.6.2012 at 11.15 p.m. at Mulakadu, 4th Mile Bus stop, Accused No.1 and others assaulted the deceased and he was in the A.J. Hospital in ICU and 40 succumbed to the injuries on 16.6.2012 at 5.10 a.m. and only attending doctors and nurses have first seen the deceased. At item No.4 of the inquest report as to who have seen the deceased last when he was alive, it is stated that only doctors and nurses have seen the deceased last when he was alive. At item No.11 of the inquest report with regard to reason for death, it is stated that among the accused persons, Accused No.1 had enmity with PW.5 and his friends and thinking that the deceased Kumar belonged to the group of PW.5, Accused No.1 stabbed on the left abdomen of the deceased Kumar 2-3 times, as a result of which the deceased Kumar died.
38. PW.19 - Dr. Jayaprakash, who issued the wound certificate - Ex.P21, has stated on oath that he examined Mr. Kumar, aged about 18 years on 15.6.2012 at 11.35 p.m., who was brought by his friend - Manjunath with the alleged history of assault on the same day at 11.15 p.m. by a group of people viz., Santosh and others by using knife. PW.19 also stated in his cross- examination that the injured Kumar was operated by Dr. Devi Das Shetty. Admittedly, the said Dr. Devi Das Shetty has not been 41 examined. PW.19 also admitted that in Ex.P10, the history of the injury is mentioned as assault by people. In the cross-examination by Accused Nos.4 and 5, PW.19 has admitted that in respect of all the MLC cases in A.J. Hospital, he used to issue wound certificate and also depose before the concerned Court, but denied the suggestion that he is not competent to issue wound certificate. The said materials have not been considered the learned Sessions Judge.
39. In Ex.P10 - MLC intimation dated 16.6.2012, in respect of item No.6 relating to cause of incident, it is stated that the alleged assault occurred at 11.15 pm. on 15.6.2012 with knife by people. Further, PW.19 who issued Ex.P19 - wound certificate also stated that on 15.6.2012 at 11.35 p.m. he examined the deceased Kumar, aged about 18 years, who was brought by his friend with the history of 'assault on that day at 11.15 p.m. by a group of people viz., Santosh and others by using a knife'. He opined that the two injuries on the deceased were fresh and injury No.1 caused by sharp cutting pointed weapon and injury No.2 was caused by sharp cutting edged weapon and the patient expired on 16.6.2012 42 at 5.10 a.m. All these aspects have not been considered by the learned Sessions Judge in the proper perspective.
40. On re-appreciation of the entire oral and documentary evidence on record meticulously, it clearly depicts that there was enmity between PW.5 - Pappu @ Pradeepa and Accused No.1 and there was criminal case lodged by PW.5 against the accused. On the day of the unfortunate incident, there was a scuffle between PWs.1 to 3 and the deceased on one side and the accused persons on the other side for about 5 minutes and in that scuffle, at the beginning Accused No.1 assaulted the deceased with hand and thereafter, in a sudden provocation without there being any premeditation, Accused No.1 assaulted the deceased with knife - Mo.4 and the deceased sustained injuries and he was taken to hospital, where he died. Absolutely there is no material in the evidence of the prosecution witnesses or in the medical evidence with regard to involvement of Accused Ns.2 to 5 in the alleged homicidal death of the deceased. As already stated supra, the learned Sessions Judge recorded a finding that the prosecution failed to prove beyond reasonable doubt the conspiracy among the 43 accused persons to kill the deceased. Considering the totality of the circumstances, except Accused No.1, other accused persons are not at all involved in the homicidal death of the deceased. Therefore, the learned Sessions Judge is not justified in convicting Accused Nos.2 to 5 for the offence punishable under Section 302 of IPC with the aid of Section 149 of IPC merely because the Investigating Officer has invoked the provisions of Section 149 of IPC.
41. By a careful reading of the provisions of Section 149 of IPC, it clearly depicts that every member of unlawful assembly guilty of offence committed in prosecution of common object - if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of the committing of that offence, is a member of the same assembly, is guilty of that offence. This provision appears under the heading "offences against public tranquility" in the IPC. The present day Indian Penal Code derives its genesis from the Draft Penal Code for 44 India commonly called the Macaulay Code. Those were the times during the middle of the 19th century when Indian opposition to the British rule was taking its baby steps. As the opposition became stronger, the British rulers felt an emergent need for devising a deterrent penalty which could contain the opposition at the nascent stage. In an attempt to do so, the concept of vicarious liability was introduced, unlike the modern day section 149, the sentence was restricted. With the passage of time, as the freedom movement gained momentum, the erstwhile British Government needed sterner punishments and deterrents to suppress the struggles with "iron hand". The year 1857 witnessed the first organized attempt at independence - the Indian Mutiny of 1857. The startled British governance brought in section 149 exactly in the fashion as it stands in the statute book today. The provisions of Section 149 was enacted as a tool to curtail the freedom movement with an "iron hand" and has continued in the statute book since then. Though India got independence in the year 1947, still the said provision continued in the IPC even today.
45
42. The scrutiny of the provisions of section 149 on the touchstone of fundamental rights has become the need of the hour because of the alarming misuse of the said section by the prosecuting agencies. The Investigating Officers sometime would violate the fundamental rights guaranteed in the Constitution under Articles 14, 19 and 21 of the Constitution of India. In complete disregard of Article 21 and the promise of individual liberty, the police and prosecution are now using section 149 as a presumption of guilt of all persons who happen to be present at the spot, including those who become part of assembly oblivious to its unholy intentions or as curious onlookers. In rural India, people usually carry agricultural equipments like farsa/axe/lathis, hand sickle, shovel, spade, pickaxe, Hoe, mattock etc., with them. In any heated exchange it is not unlikely that the other residents of village are vocal about their "views" on the issue between the warring parties. In such an assembly when an offence takes place due to miscreance of one of the erring members the brunt is borne by all members of the assembly including all the onlookers who happened to carry a farsa/lathi with them and were curious enough to stop and look at what is happening. And if any of them has uttered a 46 sentence then he is doomed for life imprisonment if ultimately an offence of murder is committed by one of the person. Over implication and subsequent arrest is rampant because of rival/ jealous/ motivated/interested parties are eager to volunteer as eye- witnesses thereby improving the "conviction rate" for the prosecution.
43. It is high time for the investigating agency to conduct proper investigation whenever the provisions of Section 149 are invoked along with the other provisions of IPC to ensure that there should not be any violation of fundamental rights guaranteed to the citizens under Articles 14, 19 and 21 of the Constitution of India and also to ensure that innocent people should not be implicated. While invoking the provisions of Section 149 of IPC, the investigating agency shall confirm after investigation as to whether such persons really committed an offence along with the other co- accused, if any. Otherwise, the rival/jealous/motivated/interested parties are eager to implicate innocent people, sometimes with the influence of local politicians also.
47
44. It is the bounden duty of the Court, while considering the cases arising out of the provisions of Section 307 or Section 302 r/w 149 of IPC that the Court should act as societal parents and ensure a proper analysis of the evidence on record and merely because one of the accused committed the alleged offence, the other members of the unlawful assembly should not unnecessarily be punished with imprisonment for life, without there being any contribution of other members with the common object for commission of the offence, in order to protect liberty of the citizens. Of course, such members are separately punishable for minor offences under Sections 143, 147,148,323,341 and 504 of IPC etc.
45. In the present case, merely because all the accused came together in two cars as stated in the averments of the complaint and in one car as stated in the evidence of the prosecution witnesses and there was a scuffle between the two parties and in that scuffle, Accused No.1 without knowledge of others used Mo.4 - knife against the deceased, it cannot be said that all the accused persons unlawfully assembled and scuffled and killed the deceased Kumar with the common object. Admittedly, Accused Nos.2 to 5 48 were totally unarmed and even according the prosecution witnesses, no material objects were recovered by the Investigating Officer at the instance of the Accused Nos. 2 to 5.
46. The Hon'ble Supreme Court while considering the provisions of Section 302 r/w 149 of IPC in the case of Chikkarange Gowda and others -vs- State of Mysore reported in AIR 1956 SC 731 held at paragraphs 10 and 11 as under;
10. It is quite clear to us that on the finding of the High Court with regard to the common object of the unlawful assembly, the conviction of the appellants for an offence under Section 302 read with Section 149 Indian Penal Code cannot be sustained. The first essential element of Section 149 is the commission of an offence by any member of an unlawful assembly; the second essential part is that the offence must be committed in prosecution of the common object. In the case before us, the learned Judges of the High Court held that the common object of the unlawful assembly was merely to administer a chastisement to Putte Gowda. The learned Judges of the High Court did not hold that though the common object was to chastise Putte Gowda, the members of the unlawful assembly 49 knew that Putte Gowda was likely to be killed in prosecution of that common object. That being the position, the conviction under Section 302 read with Section 149 Indian Penal Code was not justified in law.
11. So far back as 1873, in Queen v. Sabid Ali [20 Weekly Reporter (Criminal) 5] it was pointed out that Section 149 did not ascribe every offence which might be committed by one member of an unlawful assembly while the assembly was existing, to every other member. The section describes the offence which is to be so attributed under two alternative forms: (1) it must be either an offence committed by a member of the unlawful assembly in prosecution of the common object of that assembly; or (2) an offence such as the members of that assembly knew to be likely to be committed in prosecution of that object. In Barendra Kumar Ghosh v. King-Emperor [52 Indian Appeals 40] the distinction between Sections 149 and 34 of the Indian Penal Code was pointed out. It was observed that Section 149 postulated an assembly of five or more persons having a common object, namely, one of those objects named in Section 141, and then the doing of acts by members of the assembly in prosecution of that object or such as the members knew were likely to be committed in prosecution of that object. It was pointed 50 out that there was a difference between common object and common intention; though the object might be common, the intention of the several members might differ. The leading feature of Section 34 is the element of participation in action, whereas membership of the assembly at the time of the committing of the offence is the important element in Section 149. The two sections have a certain resemblance and may to a certain extent overlap, but it cannot be said that both have the same meaning. The distinction between the two sections was again explained in a recent decision of this Court. (Nanak Chand v. State of Punjab [(1955) 1 SCR 1201] (Criminal Appeal No. 132 of 1954, decided on 25th January, 1955).
47. On meticulous reading of the oral and documentary evidence of the prosecution witnesses, it clearly depicts that Accused Nos.1,2,3,4 and 5 were present at the place of occurrence. The mere presence in an assembly does not make a person, who is present, a member of an unlawful assembly unless it is shown that he had done something or omitted to do something which would make him a member of an unlawful assembly, or unless the case falls under Section 142 of IPC, cannot be read as laying down a 51 general proposition of law that unless an overt act is proved against a person who is alleged to be a member of an unlawful assembly, it cannot be said that he is a member of such an unlawful assembly. What has to be proved against a person who is alleged to be a member of an unlawful assembly is that he was one of the persons constituting the assembly and he entertained along with the other members of the assembly the common object as defined by Section 141 of IPC. An assembly of five or more persons actuated by, and entertaining one or more of the common objects specified by the five clauses of Section 141 of IPC, is an unlawful assembly. The crucial question to determine in such a case is whether the assembly consisted of five or more persons and whether the said persons entertained one or more of the common objects as specified by Section 141 of IPC. In fact, Section 149 of IPC makes it clear that if an offence is committed by any member of an unlawful assembly in prosecution of the common object of that assembly, or such as the members of that assembly knew to be likely to be committed in prosecution of that object, every person who, at the time of committing of that offence, is a member of the same assembly, is guilty of that offence; and that emphatically 52 brings out the principle that the punishment prescribed by Section 149 of IPC is in a sense vicarious and does not always proceed on the basis that the offence has been actually committed by every member of the unlawful assembly.
48. Admittedly the material on record clearly depicts that only Accused No.1 has stabbed the deceased on his left abdomen with a knife and other accused persons were not involved in the commission of the offence. Though all the accused persons came together in one car, they did not know what was happening and unfortunately the incident occurred at the instance of Accused No.1 and therefore involvement of the other accused persons in the commission of the offence as held by the learned Sessions Judge, cannot be sustained.
49. It is also relevant to consider that the common object is necessary to invoke the provisions of Section 149 of IPC. For "common object", it is not necessary that there should be a prior concert in the sense of a meeting of the members of the unlawful assembly, the common object may form on spur of the moment; it is enough if it is adopted by all the members and is shared by all of 53 them. In order that the case may fall under the first part of Section 149 of IPC, the offence committed must be connected immediately with the common object of the unlawful assembly of which the accused were members. It is not the case of the prosecution that there was a common object of all the accused persons prior to the concert of meeting of the members of unlawful assembly to cause death of the deceased. It is also not the case of the prosecution that the common object formed on spur of the moment and it is adopted by all the members and is shared by all of them for the commission of the offence. Admittedly as soon as the incident occurred, the accused persons ran away. Considering the totality of the facts and circumstances of the case, the learned Sessions Judge is not justified in convicting Accused Nos.2 to 5 under Section 302 of IPC with the aid of Section - 149 of IPC and sentencing them to undergo imprisonment for life with fine and the same is liable to be set aside.
50. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Roy Fernandes -vs- State of Goa and others reported in AIR 2012 SC 1030, wherein the Hon'ble 54 Supreme Court held at paragraphs 10, 13, 16, 23, 24 and 31 as under:
[
10. Acquittal of three of the five accused persons comprising the unlawful assembly does not in the light of the settled legal position make any material difference. So long as there were four other persons with the appellant who had the common object of committing an offence the assembly would be unlawful in nature acquittal of some of those who were members of the unlawful assembly by reason of the benefit of doubt given to them notwithstanding.
13. From the evidence on record, we are inclined to hold that even when commission of murder was not the common object of the accused persons, they certainly had come to the spot with a view to overawe and prevent the deceased by use of criminal force from putting up the fence in question. That they actually slapped and boxed the witnesses, one of whom lost his two teeth and another sustained a fracture only proves that point.
16. Coming then to the facts of the present case, the first and foremost of the notable circumstances is that the appellant was totally unarmed for even according to the prosecution witnesses he had pushed, 55 slapped and boxed those on the spot using his bare hands. The second and equally notable circumstance is that neither the cycle chain nor the belt allegedly carried by two other members of the unlawful assembly was put to use by them. Mr. Luthra argued that the prosecution had failed to prove that the assembly was armed with a chain and a belt for the seizure witnesses had not supported the recovery of the said articles from the accused. Even if we were to accept the prosecution case that the two of the members of the unlawful assembly were armed as alleged, the non-use of the same is a relevant circumstance. It is common ground that no injuries were caused by use of those weapons on the person of the deceased or any one of them was carrying a knife. The prosecution case, therefore, boils down to the appellant and his four companions arriving at the spot, one of them giving a knife-blow to the deceased in his thigh which cut his femoral artery and caused death. The question is whether the sudden action of one of the members of the unlawful assembly constitutes an act in prosecution of the common object of the unlawful assembly, namely, preventing of erection of the fence in question and whether the members of the unlawful assembly knew that such an offence was likely to be committed by any member of the assembly? Our answer is in the negative.56
23. In the case at hand, there is, in our opinion, no evidence to show that the appellant knew that in prosecution of the common object of preventing the putting up of the fence around the chapel the members of the assembly or any one of them was likely to commit the murder of the deceased. There is indeed no evidence to even show that the appellant knew that Anthony D'Souza was carrying a knife with him, which he could use. The evidence on the contrary is that after stabbing the deceased, Anthony D'Souza had put the knife back in the cover from where he had drawn it. The conduct of the members of the assembly especially the appellant also does not suggest that they intended to go beyond preventing the laying of the fence, leave alone committing a heinous offence of murder of a person who had fallen to the ground with a simple blow and who was being escorted away from the spot by his companions. We have, therefore, no hesitation in holding that the courts below fell in error in convicting the appellant for murder with the aid of Section 149 IPC.
24. Having said that, we have no manner of doubt that the conviction of the appellant for the offences punishable under Sections 143, 148, 323 and 325 read with Section 149 IPC is perfectly justified. The evidence on record clearly makes out a case against the 57 appellant under those provisions and the courts below have rightly found him guilty on those counts. In fairness to Mr Luthra, we must mention that even he did not assail the conviction of the appellant under those provisions. What was argued by the learned counsel is that this Court could reduce the sentence to the period already undergone by the appellant having regard to the fact that the incident in question had taken place nearly 15 years back and the appellant had not only suffered the trauma of a prolonged trial and uncertainty but his life had also suffered a setback, inasmuch as Antonetta had divorced him. Mr. Luthra submitted that the appellant was a first offender and being a middle aged man, could be spared the ignominy and hardship of a jail term at this stage of his life when he was ready to abide by any directions of this Court regarding compensation to the victims of the incident.
Support for his submissions was drawn by Mr. Luthra from the decisions of this Court in Hansa v. State of Punjab [1977(3) SCC 575 : (AIR 1977 SC 1991)] and Hari Singh V. Sukhbir Singh and Others [1988 (4) SCC 551 : (AIR 1988 SC 2127)]. In Hansa's case (supra), the accused had been convicted for an offence under Section 325 and sentenced to undergo one year's rigorous imprisonment. The High Court had, however, given the accused the benefit of the Probation of 58 Offenders Act, and let him off on his giving a bond for good conduct for a year. This Court held that the power vested in the Court had been correctly exercised. Even in Hari Singh's case(supra), the Court granted a similar benefit to a convict under Section 325 who had been sentenced to undergo two years' rigorous imprisonment. The Court in addition invoked its power under Section 357 CrPC to award compensation to the victim, and determined the amount payable having regard to the nature of the injury inflicted and the paying capacity of the appellant. This Court said:
"10. Sub-section (1) of Section 357 provides power to award compensation to victims of the offence out of the sentence of fine imposed on accused. In this case, we are not concerned with sub-section (1). We are concerned only with sub-section (3). It is an important provision but courts have seldom invoked it. Perhaps due to ignorance of the object of it. It empowers the court to award compensation to victims while passing judgment of conviction. In addition to conviction, the court may order the accused to pay some amount by way of compensation to victim who has suffered by 59 the action of accused. It may be noted that this power of courts to award compensation is not ancillary to other sentences but it is in addition thereto. This power was intended to do something to reassure the victim that he or she is not forgotten in the criminal justice system. It is a measure of responding appropriately to crime as well of reconciling the victim with the offender. It is, to some extent, a constructive approach to crimes. It is indeed a step forward in our criminal justice system. We, therefore, recommend to all courts to exercise this power liberally so as to meet the ends of justice in a better way.
11. The payment by way of compensation must, however, be reasonable. What is reasonable, may depend upon the facts and circumstances of each case. The quantum of compensation may be determined by taking into account the nature of crime, the justness of claim by the victim and the ability of accused to pay. If there are more than one accused they may be asked to pay in equal terms unless their capacity to pay 60 varies considerably. The payment may also vary depending upon the acts of each accused. Reasonable period for payment of compensation, if necessary by instalments, may also be given. The court may enforce the order by imposing sentence in default."
31. In the result, we allow this appeal in part, set aside the conviction and sentence awarded to the appellant under Section 302 read with Section 149 IPC and acquit the appellant of that charge. The conviction of the appellant for the offences punishable under Sections 323 and 325 IPC is affirmed and the appellant is sentenced to the period of imprisonment already undergone by him. We further direct that the appellant shall deposit a sum of Rs 3,00,000 towards compensation to be paid to the widow of the deceased Shri Felix Felicio Monteiro, failing her to his surviving legal heirs. A sum of Rs 1,00,000 shall be similarly deposited towards compensation payable to Shri Salish Monteiro, besides a sum of Rs 50,000 to be paid to Ms Conceicao Monteiro failing to their legal representatives. The deposit shall be made within two months from today failing which the sentence of one year awarded to the appellant shall stand revived and the appellant taken in custody to serve the remainder of the period. 61
The appeal is disposed of with the above modification and directions.
51. As we have already stated supra, the trial Court acquitted all the accused persons under Section 120B of IPC holding that the prosecution failed to prove the conspiracy among the accused persons to kill the deceased beyond reasonable doubt. Admittedly, the State has not filed any appeal against the acquittal of Accused No.1 to 5 for the offence punishable under Section 120B of IPC. Therefore, the impugned Judgment and Order of conviction under Section 302 read with Section 149 of IPC against the Accused Nos.2 to 5 is liable to be set aside.
VII. REGARDING CONVICTION OF ACCUSED NO.1 FOR THE OFFENCE UNDER SECTION 302 OF IPC BY THE TRIAL COURT
52. It is not in dispute that there was no enmity between the Accused NO.1 and the deceased and on 15.6.2012 at 11.15 p.m. PWs.1 to 3 and the deceased had been to Konchadi for purchase of mosquito coil and while coming back near 4th Mile bus stop, two cars and motorcycle blocked their way and when they were identifying the inmates, there was a scuffle between the accused 62 persons on one side and PWs.1 to 3 and the deceased on the other side for 5 minutes as spoken to by all the prosecution witnesses. There was no enmity between the parties earlier and in the scuffle without knowing to others in a heat of passion, suddenly Accused No.1 used Mo.4 - knife and assaulted the deceased at one once and on screaming by the complainant and others, the accused ran away from the spot. The alleged assault by the accused No.1 on the deceased has occurred suddenly without premeditation and in a heat of passion. Therefore, the case does not fall within the definition of 'murder' as defined in Section 300 of IPC, but it is a culpable homicide, not amounting to murder as contemplated under Exception 4 to Section 300 of IPC, which reads as under:
"Culpable Homicide is not murder if it is committed without premeditation in a sudden fight in the heat of passion upon a sudden quarrel and without the offender having taken undue advantage or acted in a cruel or unusual manner."
A careful reading of the aforesaid provision makes it clear that to invoke said provision, four requisites must be satisfied, namely; 63
i) it was a sudden fight;
ii) there was no premeditation;
iii) the act was committed in the heat of passion and
iv) the assailant has not taken any undue advantage or acted in a cruel manner.
53. Based on the oral and documentary evidence on record, it clearly depicts that the scuffling between Accused Nos.1 to 5 on one side and PW.1 to 3 and the deceased on the other side, arose in a spur of the moment and in a heat of passion and all the prosecution witnesses have deposed that there was scuffling between the two groups for about five minutes and in that scuffle, suddenly the Accused No.1 stabbed the deceased with MO.4 - knife. Ex.P21 - wound certificate also depicts the history of assault by a group of people viz., Mr. Santhosh and others by using a knife. There was no premeditation on the part of the Accused No.1 and the act committed by him was in the heat of passion upon a sudden quarrel and the accused No.1 used the knife - Mo.4 on the left abdomen of the deceased without any premeditation. The prosecution has not proved that the accused No.1 had any intention to kill the deceased. The material on record clearly goes to show that there 64 was no pre-plan or an intention for the accused No.1 to commit the murder of the deceased. In view of the above, all the ingredients of Exception-4 of Section 300 of IPC are proved. Therefore, the offence committed by the accused No.1 falls under the provisions of Exception 4 of Section 300 of IPC and he is required to be punished with a reduced sentence by convicting him for the offence punishable under Section 304 Pat II of IPC. To that extent, the impugned judgment and order of conviction against Accused No.1 is liable to be modified.
54. Our view is fortified by the Judgment of the Hon'ble Supreme Court in the case of State of M.P. -vs- Sughar Singh and others reported in AIR 2009 SC 586, wherein the Hon'ble Supreme Court while considering the provisions of Sections 302 and 304 Part II of IPC held at paragraphs 17 and 18 as under:
17. It has also come in evidence that the incident took place "all of a sudden". When the accused saw that deceased Balkishan and Sarvan Lal were taking cattle to cattle pond, they wanted both of them not to do so and with a view to prevent them from taking cattle to cattle pond, the accused attacked them.65
18. Considering the nature of injuries, and totality of facts and circumstances, we are of the view that the case does not fall within the definition of "murder" as defined in Section 300 IPC punishable under Section 302 IPC, but in a case of culpable homicide, not amounting to murder punishable under Section 304 Part II IPC.
55. Our view is also fortified by the dictum of the Hon'ble Supreme Court in the case of Abani K. Debnath and another -
vs- State of Tripura reported in (2005)13 SCC 422, wherein the Hon'ble Supreme Court held at paragraphs 4 and 5 as under:
4. The common intention as is well known in criminal jurisprudence is the premeditated meeting of mind. No doubt the common intention can also be formed on the spot. But in the instant case since the original quarrel was between Anil Das, PW 1 and Amar Debnath, A-5, in our view, it is difficult to say that there was common intention either premeditated or formed on the spot with regard to the murder of Ranjit Das. We have already noted that Ranjit Das was an intervenor to save Anil Das and in such a situation the incident appeared to have occurred on the spur of the moment.
By no stretch of imagination can it be said that the 66 murder of Ranjit Das was with the common intention of A-1 and A-5. From the evidence on record it clearly appears that the dao-blow was dealt by only A-1. If at all a conviction under Section 302 IPC is maintained, the death resulted by an independent act of A-1. In such a situation, A-5 cannot be roped in with the aid of Section 34 IPC. We are clearly of the view that the conviction of A-5 under Section 302 IPC with the aid of Section 34 IPC is not sustainable and, therefore, conviction qua A-5 under Sections 302/34 IPC is set aside.
5. This leads us to consider as to under what section of law A-1 Abani K. Debnath is liable to be convicted in the given facts of the case. The prosecution evidence clearly discloses that the dao-blow dealt by A- 1 was preceded by a mutual quarrel. We have already noted that there was no common intention to kill Ranjit Das. From the nature of injuries, it is disclosed that A-1 dealt only one dao-blow perhaps on the spur of the moment. The incident had taken place on 10-8-1990 and the deceased succumbed to the injury on 15-8- 1990 after a lapse of 7 days. Taking the prosecution evidence and medical evidence cumulatively, we are of the view that the conviction of A-1 also cannot fall under Section 302 IPC but at the most under Section 67 304 Part II. We accordingly convert the sentence of A-1 Abani K. Debnath under Section 302 IPC to one under Section 304 Part II IPC and sentence him to suffer RI for five years. The fine amount imposed by the trial court and affirmed by the High Court is maintained. It is stated at the Bar that A-1 has undergone about 18 months' imprisonment, if that is so, he will be entitled to get the benefit of Section 428 CrPC.
VIII. REGARDING CONVICTION OF ACCUSED NOS.1 TO 5 FOR THE OFFENCES UNDER SECTIONS 143, 147, 148, 341, 323, 504 r/w SECTION 149 of IPC
56. Based on the oral and documentary evidence on record, the trial Court rightly convicted Accused No.1 to 5 for the offences punishable under Section 143, 147, 148, 341, 323, 504 r/w Section 149 of IPC. Having regard to the totality of the facts and circumstances of the case, we are of the considered opinion that the sentence imposed by the trial Court requires modification.
57. The provisions of Section 143 of IPC prescribes punishment of imprisonment of either description for a term which may extend to six months, or with fine, or with both. Section 147 of IPC prescribes punishment of either description for a term which 68 may extend to two years, or with fine, or with both. Section 148 of IPC prescribes punishment of imprisonment of either description for a term which may extend to three years, or with fine, or with both. Section 341 prescribes punishment of Simple Imprisonment for a term which may extend to one month, or with fine which may extend to five hundred rupees, or with both. Section 323 of IPC prescribes punishment of imprisonment of either description for a term which may extend to one year, or with fine which may extend to one thousand rupees, or with both. Section 504 of IPC prescribes punishment of imprisonment of either description for a term which may extend to two years, or with fine, or with both.
58. The trial Court sentenced the Accused Nos.1 to 5 to undergo Simple Imprisonment for six months with fine of Rs.1,000/- for the offence under Section 504 of IPC; to undergo Simple Imprisonment for three months with fine of Rs.1,000/- for the offence under Section 323 of IPC; to pay fine of Rs.1,000/- for the offence under Section 341 of IPC; to undergo Simple Imprisonment for one year and to pay fine of Rs.1,000/- for the offences under Sections 143, 147 and 148 of IPC. 69
59. Taking into consideration the totality of the facts and circumstances of the case and that the incident occurred suddenly due to scuffling between the parties, it would be sufficient to impose only fine instead of any imprisonment on the Accused Nos.1 to 5 for the offences punishable under Sections 143, 147, 148, 341, 323, 504 r/w Section 149 of IPC. Accordingly, each of the Accused Nos.1 to 5 are liable to pay only enhanced fine for the aforesaid offences, in the interest of justice.
IX. REGARDING CONVICTION OF ACCUSED NOS.1 TO 5 UNDER SECTION 3(2)(v) OF THE SC & ST (POA) ACT
60. The learned Sessions Judge proceeded to convict the Accused Nos.1 to 5 for the offence under Section 3(2)(v) of the SC & ST (POA) and sentenced them undergo imprisonment for life merely because the deceased Kumar is a member of Scheduled Caste. Admittedly, the accused and PWs.1 to 3 are strangers and there was enmity between PW.5 and Accused No.1. In the entire evidence of the prosecution witnesses and the material documents, there was no whisper about making an assault by the accused persons knowing that the victim or the deceased is a member of 70 Scheduled Caste or Scheduled Tribe. The fact that the victim or the deceased belonged to Scheduled Caste or Scheduled Tribe would not be enough to invoke the provisions of Section 3(2))(v) of the SC & ST (POA) Act. Absolutely, there is no material including the complaint averments that knowing fully the caste of the deceased, the accused persons assaulted the deceased. Therefore, the very inclusion of the provisions of SC & ST (POA) Act by the Investigating Officer is without any basis. To invoke the said provision, the offence must have been committed against the person on the ground such person is a member of the Scheduled Caste or Scheduled Tribe. There is no evidence to show that the offence committed only on the ground that the victim or the deceased was a member of the Scheduled Caste or Scheduled Tribe. In the absence of the same, and in peculiar circumstances, the impugned judgment and order of conviction passed by the trial Court in so far as convicting accused Nos.1 to 5 under Section 3(2)(v) of SC & ST (POA) Act, cannot be sustained and the same is liable to be set aside.
71
61. Our view is fortified by the dictum of the Hon'ble Supreme Court in the case of Hitesh Verma -vs- State of Uttarakhand and another reported in 2020 SCC OnLine SC 907, wherein the Hon'ble Supreme Court held at paragraphs 17 to 20 as under:
17. In another judgment reported as Khuman Singh v. State of Madhya Pradesh, this Court held that in a case for applicability of Section 3(2)(v) of the Act, the fact that the deceased belonged to Scheduled Caste would not be enough to inflict enhanced punishment.
This Court held that there was nothing to suggest that the offence was committed by the appellant only because the deceased belonged to Scheduled Caste. The Court held as under:
"15. As held by the Supreme Court, the offence must be such so as to attract the offence under Section 3(2)(v) of the Act. The offence must have been committed against the person on the ground that such person is a member of Scheduled Caste and Scheduled Tribe. In the present case, the fact that the deceased was belonging to "Khangar"-Scheduled Caste is not disputed.
There is no evidence to show that the 72 offence was committed only on the ground that the victim was a member of the Scheduled Caste and therefore, the conviction of the appellant-accused under Section 3(2)(v) of the Scheduled Castes and Scheduled Tribes (Prevention of Atrocities) Act is not sustainable."
18. Therefore, offence under the Act is not established merely on the fact that the informant is a member of Scheduled Caste unless there is an intention to humiliate a member of Scheduled Caste or Scheduled Tribe for the reason that the victim belongs to such caste. In the present case, the parties are litigating over possession of the land. The allegation of hurling of abuses is against a person who claims title over the property. If such person happens to be a Scheduled Caste, the offence under Section 3(1)(r) of the Act is not made out.
19. This Court in a judgment reported as Dr. Subhash Kashinath Mahajan v. State of Maharashtra issued certain directions in respect of investigations required to be conducted under the Act. In a review filed by the Union against the said judgment, this Court in a judgment reported as Union of India v. State of Maharashtra reviewed the directions issued by this 73 Court and held that if there is a false and unsubstantiated FIR, the proceedings under Section 482 of the Code can be invoked. The Court held as under:
"52. There is no presumption that the members of the Scheduled Castes and Scheduled Tribes may misuse the provisions of law as a class and it is not resorted to by the members of the upper castes or the members of the elite class. For lodging a false report, it cannot be said that the caste of a person is the cause. It is due to the human failing and not due to the caste factor. Caste is not attributable to such an act. On the other hand, members of the Scheduled Castes and Scheduled Tribes due to backwardness hardly muster the courage to lodge even a first information report, much less, a false one. In case it is found to be false/unsubstantiated, it may be due to the faulty investigation or for other various reasons including human failings irrespective of caste factor. There may be certain cases which may be false that can be a ground for interference by the Court, but the law cannot be changed due to such 74 misuse. In such a situation, it can be taken care of in proceeding under Section 482 CrPC."
20. Later, while examining the constitutionality of the provisions of the Amending Act (Central Act No. 27 of 2018), this Court in a judgment reported as Prathvi Raj Chauhan v. Union of India held that proceedings can be quashed under Section 482 of the Code. It was held as under:
"12. The Court can, in exceptional cases, exercise power under Section 482 CrPC for quashing the cases to prevent misuse of provisions on settled parameters, as already observed while deciding the review petitions. The legal position is clear, and no argument to the contrary has been raised."
X. CONCLUSION
62. On re-appreciation of the entire oral and documentary evidence on record and in the light of the principles enunciated in the dictums of the Hon'ble Supreme Court stated supra, we answer the 1st point raised in these criminal appeals partly in the affirmative holding that the appellants - Accused Nos.1 to 5 have 75 made out a case to interfere and modify the impugned Judgment of conviction and order of sentence passed by the trial Court convicting them for the offences punishable under Sections 143, 147, 148, 341, 323, 504, 302 r/w Section 149 of IPC.
63. The 2nd point raised in these criminal appeals is answered in the affirmative holding that the appellants - Accused Nos.1 to 5 have made out a case to interfere with the impugned of conviction and order of sentence passed by the trial Court in so far as convicting them for the offence punishable under Section 3(2)(v) of the SC & ST (POA) Act, 1989.
64. Accordingly, the impugned Judgment of conviction and order of sentence in so far as convicting Accused Nos.1 to 5 for the offence punishable under Section 3(2)(v) of SC & ST (POA) Act, 1989 and sentencing them to undergo imprisonment for life with fine of Rs.5,000/-, is liable to be set aside.
65. In view of the above, we pass the following order: 76
XI. R E S U L T
i) Criminal Appeal Nos.880/2015, 858/2015 and 872/2015 are allowed in part.
ii) The impugned Judgment of conviction and order of sentence dated 22/24.04.2015 passed by the Trial Court in Special Case No.42/12 in so far as convicting the Accused Nos.2 to 5 for the offence punishable under Section 302 r/w 149 of IPC and sentencing them to undergo rigorous imprisonment for life with fine, is hereby set aside. Accused Nos.2 to 5 are hereby acquitted for the offence under Section 302 r/w 149 of IPC.
iii) The impugned Judgment of conviction and order of sentence passed by the Trial Court convicting the Accused No.1 for the offence punishable under Section 302 of IPC and sentencing him to undergo rigorous imprisonment for life with fine of Rs.5,000/-, is hereby modified and the Accused No.1 is convicted for the offence punishable under Section 304 Part II of IPC and sentenced to undergo Rigorous Imprisonment for a period of NINE YEARS with fine of Rs.20,000/- (Rupees Twenty Thousand only), in 77 default to undergo Simple Imprisonment for three months.
iv) The impugned judgment of conviction and order of sentence passed by the Trial Court in so far as convicting Accused Nos.1 to 5 for the offence punishable under Section 3(2)(v) of the SC & ST (POA) Act and sentencing them to undergo imprisonment for life, is hereby set aside.
Accused Nos.1 to 5 are hereby acquitted for the aforesaid offence.
v) The impugned Judgment of conviction in so far as convicting the Accused No.1 for the offences punishable under Sections 143, 147, 148, 341, 323 and 504 of IPC, is confirmed and the sentence passed by the Trial Court for the aforesaid offences is modified and Accused No.1 is liable to pay only fine for each of the offences as under:
Offence/s under Default Section/s Fine Amount sentence 143,147, 148 of Rs. 2,000/- SI for One IPC month 341 of IPC Rs. 500/- SI for One month 323 of IPC Rs. 1,000/- SI for One month 504 of IPC Rs.1,000/- SI for One month 78
vi) The impugned Judgment of conviction in so far as convicting the Accused Nos.2 to 5 for the offences punishable under Sections 143, 147, 148, 341, 323 and 504 of IPC, is confirmed and the sentence passed by the Trial Court sentencing them to undergo imprisonment with fine for the aforesaid offences is modified and each of the Accused Nos.2 to 5 are liable to pay only fine amount for the offences as under.
Offences under Fine Default
Sections Amount Sentences
504 of IPC Rs. 6,000/- SI for Three
months
323 of IPC Rs. 1,000/- SI for Two
months
341 of IPC Rs. 500/- SI for Two
months
143, 147, 148 of Rs. 6,000/- SI for Two
IPC months
vii) All the sentences shall run concurrently.
viii) Accused No.1 is entitled to the benefit of set off as contemplated under the provisions of Section 428 of the Code of Criminal Procedure.79
ix) In exercise of the powers under Section 357(3) of the Code of Criminal Procedure, we direct that if the fine amount is deposited by Accused Nos.1 to 5, the same shall be paid to the legal heirs of the deceased Kumar as compensation, in equal proportion after proper identification.
Sd/-
JUDGE Sd/-
JUDGE Gss/-